Punjab-Haryana High Court
Om Parkash vs Ashok Kumar on 7 August, 2013
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 2009 of 1987
Date of Decision: August 07, 2013
Om Parkash
...Appellant
Versus
Ashok Kumar
...Respondent
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA Present: - Mr. Animesh Sharma, Advocate for the appellant.
None for the respondent.
1 To be referred to the Reporters or not?
2 Whether the Judgment should be reported in the Digest? SURINDER GUPTA, J Having failed before the Lower Appellate Court, the Appellant- Om Prakash has preferred this regular second appeal against the order dated 04.02.1987.
2. Om Parkash-appellant owned the shop in village Gharota, Tehsil Pathankot, District Gurdaspur. He filed a suit for possession of the shop and recovery of `300/- on account of rent for the period w.e.f. 01.01.1985 to 30.06.1985 at the rate of `50/- per month. The plea of the plaintiff-appellant is that he had let out the shop in question to defendants @ `50/- per month. The defendants have not paid the rent from 01.01.1985 to 30.06.1985 in-spite of repeated requests. He issued notice under Section 106 of the Transfer of Property Act terminating their tenancy. On the other hand, they alleged that the rate of rent was in fact `35/- per month. The rent from 01.01.1985 to 30.04.1985 had been sent to the plaintiff through money Deepak Kumar 2013.08.08 10:41 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No. 2009 of 1987 -2- order but he refused to accept the same. Regarding the notice of termination of tenancy, it has been alleged that it was received on 17.05.1985. Notice did not specify the date when the tenancy stood terminated.
3. The trial Court recorded the findings on all the issues in favour of the plaintiff and the suit was decreed for possession of the shop in dispute and also for recovery of `300/- on account of arrears of rent from 01.01.1985 to 30.06.1985.
4. The appeal preferred by the Ashok Kumar and another-tenant and the same was partly accepted. The suit of plaintiff for possession of the shop in dispute was dismissed. However, the trial Court's decree with respect to recovery of `300/- was maintained.
5. Heard learned counsel for the appellant and perused the record. None has appeared on behalf of the respondents to argue the case.
6. The substantial question of law that arises in this appeal are as follows :-
1. What is the reasonable period of notice required to be served on the tenant for terminating his tenancy in case where the provisions of East Punjab Urban Rent Restriction Act are not applicable?
2. Whether the day on which the notice was received is to be counted towards the period of notice?
7. The learned counsel for the appellant ha argued that in this case the plaintiff filed the suit on 17.7.1985. He had served notice dated 11.5.1985 (Ex.P1) terminating the tenancy of the defendant. This notice was replied on 20.5.1985. In the reply (Ex.P2) it was mentioned that the Deepak Kumar 2013.08.08 10:41 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No. 2009 of 1987 -3- notice had been received by the defendant on 17.5.1985. The factual position with regard to service of notice is not disputed. The first appellate court has accepted the appeal and dismissed the suit of the plaintiff with the following observations :-
"It is not disputed, rather in the plaint, it was stated that the tenancy commenced from first of the month as arrears of rent were claimed from January 1, 1985 to June 30, 1985. The month of May having 31 days, from May 17, 1985 to May 31, 1985 were only 14 days of the notice. Thus the question for determination is as to whether a notice issued under Section 106 of the Transfer of Property Act giving 14 days' time while terminating the tenancy is a valid notice or not."
The first appellate court in its judgment had further observed as under :-
"In view of the decision aforesaid, the view of the trial court that notice served in this case is valid cannot be accepted. The question is not as to when the suit was filed because that is not going to determine the validity of the notice issued earlier. The same has to be determined from the notice itself. Since only 14 days' notice was given terminating the tenancy, the notice is held to be invalid and illegal and, therefore, the plaintiff is not entitled to possession of the shop in dispute. Findings of the trial court on issues Nos. 2 and 3 were, therefore, reversed."
8. The first appellate court has relied on the observations made in the case of Bhaiya Ram vs. Mahavir Parshad, 1969 P.L.R. 1011, wherein it Deepak Kumar 2013.08.08 10:41 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No. 2009 of 1987 -4- was observed that 15 days appeared to be the minimum reasonable period for a notice required to be served under Section 106 of the Transfer of Property Act (for brevity, 'the Act'). It was further observed in the case that in Punjab, however, such a notice need not strictly terminate strictly with the end of the month of the tenancy. The above observations were made while dealing with the matter as to whether notice under Section 106 of the Act was required for terminating the tenancy under the provisions of the East Punjab Urban Rent Restriction Act, 1949. The view taken in the case of Bhaiya Ram (supra) was, however, differed in the case of Vinod Kumr vs. Harbans Singh Azad AIR 1977 (P&H) 262. The observations in the above referred case are not relevant to the facts of this case as the matter in dispute in this case is not related to the applicability of the provisions of the East Punjab Urban Rent Restriction Act, 1949.
9. As per the ratio of judgment in the above referred case, though the provisions of Section 106 of the Act are not strictly applicable to the State of Punjab yet 15 days notice is sufficient for termination of the tenancy.
10. Taking the above proposition of law, it is to be seen as to whether the notice dated 11.5.1985 (Ex.P1) complies the legal requirement. Section 106 of the Act (after Transfer of Property (Amendment) Act, 2002) provides as follows :-
"106. Duration of certain leases in absence of written contract or local usage - (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be Deepak Kumar 2013.08.08 10:41 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No. 2009 of 1987 -5- deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice. (2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-
section (1) shall commence from the date of receipt of notice. (3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
11. The present section has been substituted for the old Section 106 by the Transfer of Property (Amendment) Act, 2002 (Act No. 3 of 2003). The provisions of Section 106 of the principal Act, as amended by Section 2 of the amendment Act, shall apply to -
Deepak Kumar 2013.08.08 10:41 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No. 2009 of 1987 -6-
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act; and
(b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement.
12. The retrospectivity that has been conferred is to the extent that the amended provision shall apply to all notices in pursuance of which a suit or proceedings is pending at the commencement of the Amending Act. The amending provision applies to notices which have been issued before the commencement of the Act but where no suit or proceedings has been filed before such commencement. The legislature has, considered it appropriate in its wisdom to extend the application of the amended provision to situations where adjudication has not been concluded on the validity of a notice of termination under Section 106. Sections 2 and 3 of the Amendment Act implies that during the pendency of the lis, in which eviction of the tenant is sought, in pursuance of the notice to quit, the amended provisions of Section 106 shall apply irrespective of the fact as to whether the pending lis is at the instance of the landlord and the tenant.
13. As per provisions of Section 106 (2) of the Act, the period of 15 days as required under Section 106 (1) of the Act is to commence from the date of receipt of notice which as per the admission of the tenant is 17.5.1985.
14. Now I take the case from yet another angle, believing the view taken by the first appellate court that 14 days' notice was given. Section 106 (3) of the Act provides that notice shall not be deemed as invalid merely Deepak Kumar 2013.08.08 10:41 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No. 2009 of 1987 -7- because the period mentioned therein falls short of the period specified under Section 106 (1) of the Act, where the suit or proceedings was filed after the period mentioned in the sub-section. In this case, the suit was filed on 17.7.1985 i.e. after a period of two months of the receipt of notice by the defendant. As such, the notice is not invalid under the provisions of Section 106 (3) of the Act.
15. The substantial question of law framed in this case are answered in favour of the plaintiff to the effect that 15 days notice for termination of the tenancy was served by the plaintiff on the defendant and on the day on which the notice was received is to be included in the period of 15 days as per the provisions of Section 106 (2) of the Act. Even otherwise, the suit filed on the basis of the notice dated 11.5.1985 (Ex.P1) is maintainable as per the provisions of Section 106 (3) of the Act.
16. Accordingly, the judgment of the first appellate court is not tenable in the eyes of law and is set aside and that of the trial court is upheld. The respondents are granted two months time for vacation and handing over the vacant possession of the demised premises to the plaintiff- appellant.
August 07, 2013 (Surinder Gupta)
atul/deepak Judge
Deepak Kumar
2013.08.08 10:41
I attest to the accuracy and integrity
of this document which has been
signed by the Hon'ble Bench
High Court, Chandigarh